Consistent with a court order vacating the incentive provisions of the EEOC’s final wellness regulations (see our Checkpoint article), the EEOC has issued final rules removing the vacated provisions, effective January 1, 2019. As background, a federal trial court determined in 2017 that the EEOC had failed to justify its conclusions that a 30% incentive was a reasonable interpretation of voluntariness under the Americans with Disabilities Act (ADA) and that allowing incentives for providing a spouse’s medical history met the nondiscrimination requirements of the Genetic Information Nondiscrimination Act (GINA). The court initially sent the regulations back to the EEOC for reconsideration, asking the agency to timely issue new rules addressing the court’s concerns (see our Checkpoint article). But the EEOC responded that any substantively amended rules would not be applicable until 2021 (see our Checkpoint article), and the court then vacated the incentive provisions as of January 1, 2019. The EEOC has now removed the vacated provisions from the ADA and GINA wellness regulations. The preambles to the new rules explain that, as administrative actions implementing an existing court order, the rules are not subject to public comment or the usual 30-day delay.

EBIA Comment: The EEOC has no deadline for issuing new regulations on wellness program incentives. (The court initially set a deadline but later conceded that it had no authority to order the EEOC to issue new regulations on any particular schedule (see our Checkpoint article).) However, the Fall 2018 Unified Agenda of Federal Regulatory and Deregulatory Actions (a compilation of information about regulations under development by federal agencies) indicates that the EEOC intends to issue such regulations in June 2019. In the meantime, employers with wellness programs must decide what to do when the current incentive provisions go away on January 1: leave existing incentives in place, lower them, or eliminate them entirely pending new regulations. It is important to remember that the court order and the EEOC’s actions only affect the rules regarding an employer’s ability to provide incentives under the ADA and GINA. Other regulations affecting wellness programs remain in full effect (see, for example, our Checkpoint article). For more information, see EBIA’s Consumer-Driven Health Care manual at Sections VI.G (“Wellness and Disease-Management Programs: GINA Considerations”) and VI.H (“Wellness and Disease-Management Programs: ADA Considerations), EBIA’s Group Health Plan Mandates manual at Sections XX.F (“ADA Considerations for Wellness Programs”) and XXII.E (“GINA and Wellness Programs”), and EBIA’s HIPAA Portability, Privacy & Security manual at Sections XI.H (“No Discrimination on the Basis of Genetic Information”) and XI.I (“Wellness Programs Must Meet Specific Nondiscrimination Requirements”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.D.3 (“Nondiscrimination Rules’ Interaction With Wellness Programs”). You may also be interested in our recorded webinar “Time for a Check-Up: Wellness Program Design & Administration” (recorded on 3/8/2018).